First RIAA File Sharing Trial Morphs Into Groundhog Day

Thomas-Rasset testifying during her first 2007 trial.

The nation’s first file sharing copyright infringement trial has morphed into a legal Groundhog Day.

In a bid to avoid a third trial — after two mistrials — the Minnesota federal judge presiding over the 4-year-old Jammie Thomas-Rasset case wants the Recording Industry Association of American and the defendant to negotiate a settlement.

But, as Thomas-Rasset’s attorney, Joe Sibley, said in a telephone interview Monday, a settlement is not likely to happen. The reason is both sides are a universe apart on what it would take to avoid a third trial.

“There is nothing we have to offer they would be willing to accept,” Sibley said Monday. He added that Thomas-Rasset might agree to settle for the statutory minimum $750 a track.

“We’ve always hoped Ms. Thomas would accept responsibility and join us at the settlement table — especially after a judge and two different juries affirmed her clear liability. But her approach so far … does not make for productive settlement discussions,” RIAA spokeswoman Cara Duckworth said via an e-mail.

The Copyright Act allows a jury to award damages of up to $150,000 per purloined download. The Obama administration supported the nearly $2 million judgment.

U.S. District Judge Michael declared the $1.92 million verdict “shocking” and said damage awards “must bear some relation to actual damages.”

A third trial, scheduled for Oct. 4, would involve a jury assuming the woman’s liability and affixing a new damages figure.

Because of the posture of the case, the parties could not directly appeal the judge’s decision last year lowering the jury’s verdict. Assuming the judge reduces the damages again after the October trial, the appeals courts would be more inclined to take the case to avoid another day of legal ground hog, legal experts said.

Among the big bones of contention that would be addressed on appeal, Sibley claims damages under the Copyright Act are unconstitutionally excessive. The RIAA claims the judge did not have the power to lower a Copyright Act jury award.

Thomas-Rasset, of Brainerd, Minnesota, famously lost her first trial in 2007, resulting in a $222,000 judgment. But months after the four-day trial was over, Judge Davis declared a mistrial, saying he’d incorrectly instructed the jury that merely making copyrighted work available on a file sharing program constituted infringement, regardless of whether anybody downloaded the content.

He ordered both sides to the settlement table, where no deal was reached.

The only other file sharing case to have gone to trial resulted in a Boston jury in July awarding the RIAA $675,000 for 30 songs. A decision is pending on whether that award should be reduced.

Most of the thousands of RIAA file sharing cases against individuals settled out of court for a few thousand dollars.

Here’s The Thing With Ad Blockers

We get it: Ads aren’t what you’re here for. But ads help us keep the lights on. So, add us to your ad blocker’s whitelist or pay $1 per week for an ad-free version of WIRED. Either way, you are supporting our journalism. We’d really appreciate it.